25 October 2018 Thursday
Şevket Karataş [PA] (no. 2015/12554, 25 October 2018)
A power transmission line was made to run through a part of the property registered in the name of the applicant, without expropriation.
The applicant brought a civil action seeking compensation for the impugned confiscation without expropriation.
The incumbent court requested an expert report on the value of the property. Relying on the expert report and also considering that the value of the property decreased by 5.5 percent, the court awarded the applicant 375,129.98 Turkish liras (TRY) and held that the administration would be granted a permanent easement on the part of the property remaining under the power transmission line and that the relevant part would be registered in the name of the administration.
Upon appeal, the Court of Cassation quashed the first instance court’s decision on the ground that the rate of decrease in the value due to easement could not exceed 2.5 percent of the total value of the property. The applicant’s request for rectification of the decision was dismissed.
During the proceedings carried out following the quashing judgment, a new expert report was issued and the easement value was calculated as TRY 171,034.92 and it was decided that the administration would be granted a permanent easement on the part of the property remaining under the power transmission line and that the relevant part would be registered in the name of the administration.
The decision was upheld by the Court of Cassation. Besides, the applicant’s request for rectification of the decision was dismissed. The applicant subsequently lodged an individual application.
The Applicant’s Allegations
The applicant maintained that his right to property was violated due to the power transmission line made to run through a part of the land owned by him, without expropriation.
The Court’s Assessment
Confiscation without expropriation provides the administration with the opportunity to enjoy and possess a property without expropriation; however, it deprives the property owner of the constitutional guarantees.
In the present case, as also understood from the proceedings carried out, the administration confiscated the applicant’s property without expropriation. This situation, which occurred without following the procedure set out in the Expropriation Law no. 2942 and was contrary the Constitution, was also found established by the court decision.
Although it is set forth in Article 46 of the Constitution that the expropriation price shall be the same with the real value of the property and shall be paid in advance, the requirement of paying in advance shall not be fulfilled by confiscation without expropriation.
According to the Constitution, the main ground relied on in confiscation without expropriation is the public interest. There is no doubt that the expropriation conducted by the administrations and the decision of public interest must be subject to judicial review. As a matter of fact, it is stipulated in Law no. 2942 that the property owners are entitled to bring an annulment action before the administrative court against the expropriation process. Besides, in the procedure of confiscation without expropriation, the property owners are deprived of the opportunity to bring an action against the expropriation process, as well as against the decision of public interest relied on.
In addition, it is specified in Law no. 2942 that in cases where the administrations urgently need a property for the purposes of public interest, the procedure of urgent confiscation may be applied. While it is possible for the administration to apply the ordinary expropriation procedure where it needs a property for the purposes of public interest and to apply the expropriation procedure stipulated in Law no. 2942 in urgent cases, the procedure of confiscation without expropriation cannot be considered legitimate.
Confiscation without expropriation leads to the consideration of a situation, which has been created by the administration in an unconstitutional and unlawful manner, as lawful and provides the administration with the opportunity to benefit from the unlawful action in question. Accordingly, this practice results in unforeseeable and arbitrary situations in terms of the protection of the right to property. The impugned practice which is clearly devoid of legal guarantees enshrined in the Constitution should not be regarded as an alternative to the expropriation procedure.
In the present case, it was concluded that the confiscation without expropriation complained of by the applicant constituted an interference incompatible with the Constitution and the procedure stipulated in Law no. 2942 and that the interference with the applicant’s right to property was unlawful.
In addition, the inferior courts determined the price of the property by requesting expert reports, allowing the applicant to submit his objections at any stage and taking into consideration these objections. Hence, the Constitutional Court considered that the amount of the compensation awarded to the applicant was sufficient to cover his pecuniary damage.
Even though the applicant’s pecuniary damage was redressed, it must be borne in mind that the interference with his right to property through confiscation without expropriation that was contrary to the wording of the Constitution and was devoid of legal basis constituted a structural problem.
It must be acknowledged that the right to property safeguarded by the Constitution was violated, therefore, necessary administrative measures must be taken, and a copy of the decision must be sent to the incumbent administration in order to prevent any further similar violations.
Consequently, the Constitutional Court found a violation of the applicant’s right to property safeguarded by Article 35 of the Constitution.